TCPalm

The “strongest-ever” legal attack against polluted
discharges into the St. Lucie estuary resonated through a federal courtroom in
a three-hour hearing in Washington.

Although no decision was made, pivotal
arguments were narrowed down in the Rivers Coalition Defense Fund’s riparian
rights “takings” lawsuit against the U. S. Army Corps of Engineers.

Attorney Roger Marzulla, representing the
Defense Fund, laid out detailed evidence of the massive discharges from inland
which wipe out marine life and make the waters unfit to touch in wet years,
especially in ’03, ’04 and ’05.

“That was the strongest-ever presentation I’ve
seen about the estuary pollution,” said Martin County Commissioner Sarah Heard,
one of seven Stuart-area persons at the hearing. Martin County has filed a
friend-of-the-court petition favoring the lawsuit.

Judge Lynn Bush of the Court of Federal Claims
gave no indication of when she’ll rule on the parties’ cross motions for
summary judgment. Predictions ranged from one to three months.

One observer opined that the judge’s polite but
reserved demeanor would play well on a poker tour.

But she did ask a pointed question when a Corps
attorney made his continuing argument that the engineers simply released the
pollution, but did not cause it.

“It was there, though, correct ?,” the judge
said.

Marzulla drew a parallel to a person having
trash put on his property, “which doesn’t mean he has a right to pass on the
trash to someone else.”

In effect, the government acknowledged that the
St. Lucie has suffered negative effects from the discharges. Its case rests
more on procedural grounds, or what some call “loopholes.”

From this viewpoint, it is distressing that our
own government is using public money (great gobs of it) to defend the seemingly
indefensible discharge onslaughts.

The Corps is supported, alas, by the South
Florida Water Management District, which had walked in lockstep with the
federal agency to create the “drainage machine” over decades.

The district claims the case could open a
floodgate of lawsuits, to which we respond that such legal gates indeed would
need opening when transferred pollution is unreasonable.

Two other defense grounds were that
“navigational servitude” gives first priority to providing for boat traffic,
and that the Rivers Coalition claims are “time-barred” because the problems
violate the statute of limitations (six years in this case).

But the facts of the lawsuit have nothing to do
with boat traffic, the Coalition emphasizes. And the immensity of blue-green
algae damages suffered in recent years distinguish the “unlawful acts” from
older periods.

Judge Bush’s ruling on the summary judgment
motions is considered certain to be appealed by one party or the other to a
three-judge panel of the U.S. Circuit Court of Appeals.

Ultimately, the question of government’s right,
or lack thereof, to “take” a waterfront owner’s riparian right to enjoy water
free of unreasonable pollution may go down as a landmark decision based on the
Rivers Coalition lawsuit.

A favorable ruling, in turn, could force
authorities to send the water south from the Lake Okeechobee watershed. South
is just where Mother Nature directed it for centuries.

Wickstrom is founder of Stuart-based Florida
Sportsman Magazine and head of the Rivers Coalition legal defense fund. E-mail:
kywickstrom@yahoo.com